Padilla Jury Opens Pandora's Box

by Paul Craig Roberts

José Padilla's conviction on terrorism
charges on Aug. 16 was a victory, not for justice, but for the U.S. Justice
(sic) Department's theory that a U.S. citizen can be convicted, not for committing
a terrorist act but for allegedly harboring aspirations to commit such an act.
By agreeing with the Justice (sic) Department's theory, the incompetent Padilla
jury delivered a deadly blow to the rule of law and opened Pandora's Box.

Anglo-American law is a human achievement 800 years in the making. Over centuries
law was transformed from a weapon in the hands of government into a shield of
the people from unaccountable power. The Padilla jury's verdict turned law back
into a weapon.

The jury, of course, had no idea of what was at stake. It was a patriotic jury
that appeared in court with one row of jurors dressed in red, one in white,
and one in blue (Peter
Whoriskey, Washington Post, Aug. 17, 2007). It was a jury primed
to be psychologically and emotionally manipulated by federal prosecutors desperate
for a conviction for which there was little, if any, supporting evidence. For
the jury, patriotism required that they strike a blow for America against terrorism.
No member of this jury was going to return home to accusations of letting off
a person who has been portrayed as a terrorist in the U.S. media for five years.

The "evidence" against Padilla consists of three items: (1) seven
intercepted telephone conversations, (2) a 10-year-old non-relevant video of
Osama bin Laden, and (3) an alleged application to a mujahedeen (not terrorist)
training camp with Padilla's fingerprints. We will examine each in turn.

The International Herald Tribune and Associated Press reported
in detail on the telephone intercepts (June 19, 2007): "Accused al-Qaeda
operative José Padilla was never overheard using purported code words
for violent jihad in intercepted telephone conversations and spoke often about
his difficulties in learning Arabic while studying in Egypt, the lead FBI case
agent testified Tuesday. The questioning of FBI Agent James T. Kavanaugh by
Padilla attorney Michael Caruso focused on seven intercepted telephone calls
on which Padilla's voice is heard mostly talking about his marriage and his
studies but never about Islamic extremism. Caruso asked Kavanaugh if
Padilla ever was heard using what prosecutors say were code words for violent
jihad. 'No, he does not,' Kavanaugh replied. Caruso asked Kavanaugh
if Padilla was ever overheard discussing jihad training. 'No jihad training
that I've seen,' Kavanaugh said. 'He's not referring to anything here
but studying Arabic, correct? Study means study, right?' Caruso asked. 'That's
what they're talking about,' Kavanaugh testified."

Despite the FBI's testimony that the intercepted telephone messages contained
no incriminating evidence, the "patriotic" jury accepted the federal
prosecutor's unsupported accusation that there were hidden code words in
the message indicating that Padilla was a terrorist. After all, who but a terrorist
would want to learn Arabic?

The video of bin Laden had no relevance whatsoever to the charges in the case.
The video is 10 years old and makes no reference to any of the defendants. Moreover,
none of the defendants were accused of ever being in contact with bin Laden.
The only purpose of the video was to arouse in jurors fear, anger, and disturbing
memories associated with Sept. 11, 2001. The fact that the judge let prosecutors
sway a fearful and vengeful patriotic jury with emotion and passion rather than
evidence is obviously grounds for appeal.

Whoriskey reports that in their closing arguments prosecutors mentioned al-Qaeda
more than 100 times and urged jurors to think of al-Qaeda and groups alleged
to be affiliated with it as an international murder conspiracy. Padilla "trained
to kill,' Assistant U.S. Attorney Brian Frazier misinformed the jury in his
closing statement.

Who Padilla wished to kill was never identified, but according to the prosecutors
he had been wanting to kill persons unknown since 1998. Padilla was convicted
for harboring alleged intentions, not for committing any acts. Indeed, no harmful
acts are charged to Padilla. The incompetent jury fell for the prosecutors'
wild tale of a murder conspiracy many years old that had no results.

As Andrew Cohen put it, Padilla and the two co-defendants were convicted on
the charge of "terrorist-wannabes" on the basis of "evidence
that federal authorities did not believe amounted to a crime when it was gathered
back before 2001." Cohen concludes: "it's further proof that if you
can convince an American jury that a man in the dock had anything to do with
al-Qaeda, you can pretty much bank on a conviction no matter how tenuous the
evidence" (WashingtonPost.com,
Aug. 16, 2007).

The training camp application form is as suspect as any evidence can be. Moreover,
the prosecution had no evidence that Padilla actually attended such a camp.
Padilla was held illegally for 3.5 years and tortured. At any time during his
illegal detention and torture, Padilla could have been handed a form, thus tainting
it with his fingerprints.

Amy Goodman, the forensic
psychiatrist Dr. Angela Hegarty, the Christian Science Monitor, and others
have described how U.S. interrogators abused Padilla and destroyed his mind.
To expect a person as badly tortured and abused as Padilla to retain the wits
not to touch a piece of paper handed to him, or forced into his hands, is unreasonable.

When Padilla was arrested five years ago in 2002, the U.S. government charged
that he was about to set off a radioactive "dirty bomb" in a U.S.
city that would kill tens or even hundreds of thousands of Americans. The story
was a total lie, a fabrication designed to keep the fear level high after 9/11
in order to keep support for the Bush regime's wars and domestic police state.
None of the charges on which Padilla was illegally held, during those years
before the U.S. Supreme Court intervened and ordered the Bush regime to release
Padilla or bring him to trial, were part of the charges on which Padilla was
tried.

There is little doubt that Padilla's conviction, and probably also the convictions
of the two co-defendants, is a terrible injustice. But the damage done goes
far beyond the damage to the defendants. What the red, white, and blue Padilla
jury has done is to overthrow the U.S. Constitution and give us the rule of
men.

The U.S. Constitution and Anglo-American legal tradition prevent indictments,
much less convictions, based on a prosecutor's theory that a person wanted to
commit a crime in the past or might want to in the future. Padilla has harmed
no one. There is no evidence that he made an agreement with any party to harm
anyone whether for money or ideology or any reason. The FBI testified that the
telephone calls were innocuous. The bin Laden video was evidence of nothing
pertaining to the defendants. The piece of paper, alleged to be a personnel
form recovered from an al-Qaeda camp in Afghanistan, is nothing but a piece
of paper and an assertion.

As Lawrence Stratton and I demonstrated in our book, The
Tyranny of Good Intentions (2000), the protective features of law had
been seriously eroded prior to the Bush regime's assault on civil liberty in
the name of "the war on terror." The U.S. Constitution and the Bill
of Rights rest on Blackstone's Commentaries on the Laws of England. Blackstone
explained law as the protective principles against tyranny  habeas corpus,
due process, attorney-client privilege, no crime without intent, no retroactive
law, no self-incrimination.

Jeremy Bentham claimed that these protective principles were outmoded in a
democracy in which the people controlled the government and no longer had reasons
to fear it. The problem with Blackstone's "Rights of Englishmen,"
Bentham said, is that these civil liberties needlessly limit the government's
power and, thus, its ability to protect citizens from crime. Bentham wanted
to preempt criminal acts by arresting those likely to commit crimes in advance,
before the budding criminals entered into a life of crime. Bentham, like the
Bush regime, the Padilla jury, and the Republican Federalist Society, did not
understand that when law becomes a weapon, liberty dies regardless of the form
of government. If they do understand, they prefer unaccountable government power
to individual liberty.

The incompetent Padilla jury has done Americans and their liberty far more
damage than will ever be done by terrorists, other than those in our criminal
justice (sic) system who now wield the powers that Bentham wanted to give them.

The Padilla case was the way the Bush Justice (sic) Department implemented
its strategy for taking away the legal principles that protect American citizens.
Padilla is an American citizen. He was denied habeas corpus and his rights to
an attorney and due process. He was tortured in an attempt to coerce him into
self-incrimination. In treating Padilla in these ways, the U.S. Department of
Justice (sic) violated both the U.S. Constitution and federal law. There is
no doubt whatsoever that the Justice (sic) Department committed far more crimes
than did Padilla.

By the time the Supreme Court finally intervened, Padilla was universally known
as the demonized "dirty bomber," an "enemy combatant" who
was arrested before he could set off a radioactive bomb in a U.S. city. The
Injustice Department could now simultaneously convict Padilla and enshrine Benthamite
law simply by appealing to fear and patriotism. And that is what happened.

Under Benthamite law, the individual has no rights. The new calculus is "the
greatest good for the greatest number" as determined by the wielders of
power. On the basis of this new law, not written by Congress but invented by
the Injustice Department and made precedent by the Padilla jury's verdict, the
U.S. can lock up people based on the percentage of crime committed by their
race, gender, income class, or ethnic group.

Under Benthamite law, people can be arrested and prosecuted for thought crimes.
Under Benthamite law, it is the government that protects the people, not the
Constitution and Bill of Rights that protect the individual. Benthamite law
makes "advocacy speech," for example, a call for the overthrow of
the U.S. government, upheld in the 1969 Supreme Court decision, Brandenburg
v. Ohio, a serious federal crime.

The Padilla jury has opened Pandora's Box. Unless the conviction is overturned
on appeal, American liberty died in the Padilla jury's verdict.

Paul Craig Roberts
wrote the Kemp-Roth bill and was assistant secretary of the Treasury
in the Reagan administration. He was associate editor of the Wall
Street Journal editorial page and contributing editor of National
Review. He is author or co-author of eight books, including
The
Supply-Side Revolution (Harvard University Press). He has
held numerous academic appointments, including the William E. Simon
chair in political economy, Center for Strategic and International
Studies, Georgetown University, and senior research fellow, Hoover
Institution, Stanford University. He has contributed to numerous
scholarly journals and testified before Congress on 30 occasions.
He has been awarded the U.S. Treasury's Meritorious Service Award
and the French Legion of Honor. He was a reviewer for the Journal
of Political Economy under editor Robert Mundell.

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